Wednesday, 29 October 2025

 Ben CARROLL (Niddrie – Minister for Education, Minister for WorkSafe and the TAC) (20:30): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Victorian Early Childhood Regulatory Authority Bill 2025:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Victorian Early Childhood Regulatory Authority Bill 2025 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I have this opinion for the reasons outlined in this statement.

Overview of the Bill

The main purposes of the Bill are:

• to establish the Victorian Early Childhood Regulatory Authority (Regulatory Authority), a new independent authority with responsibility for regulating early childhood education and care services under the Education and Care Services National Law in the Schedule to the Education and Care Service National Law Act 2010 (National Law) and children’s services under the Children’s Services Act 1996 (CS Act);

• to provide for the Victorian Early Childhood Worker Register; and

• to make related consequential amendments to other Acts.

Human rights

The human rights protected by the Charter that are engaged by this Bill are:

• the right to privacy (section 13);

• the right to participate in public life (section 18);

• the right to a fair hearing (section 24); and

• the right not to be punished more than once for the same offence (section 26). I will discuss these human rights in turn.

Appointment and removal of Early Childhood Regulator

Clause 10 establishes the role of the Early Childhood Regulator. The Governor in Council, on the recommendation of the Minister, may appoint a person as the Early Childhood Regulator (Regulator). Clause 12(1) provides that the Governor in Council, on the recommendation of the Minister, may appoint a person to act in the office of the Regulator for a period not exceeding 6 months if the Regulator is absent or, for any other reason, is unable to perform the duties of office, or if there is a vacancy in the office of the Regulator, during such period. Clause 12(2) provides that the Minister may appoint a person to act in the office of the Early Childhood Regulator for a period not exceeding 6 months if the Early Childhood Regulator is absent.

Clauses 10(2) and 12(3) provide that the Minister must not appoint or recommend a person for appointment as the Regulator or acting Regulator if that person is, among other things, insolvent or been convicted, or found guilty, of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence. These criteria will, in effect, require any person seeking appointment as Regulator to disclose to the Minister personal information – including sensitive information such as their criminal record. By implementing such criteria section 13 of the Charter is engaged.

Right to privacy (section 13)

Section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought. The right to privacy encompasses rights to information privacy. Section 13(b) of the Charter provides that a person has the right not to have their reputation unlawfully attacked. An ‘attack’ on reputation will be lawful if it is permitted by a precise and appropriately circumscribed law.

I consider any impacts on the right to privacy are not unlawful or arbitrary. The interference with privacy is authorised under the legislation and is for the purpose of assuring the appropriateness of the person to be appointed the Regulator responsible for regulating early childhood services under the National Law and the CS Act. Further, information relating to criminal convictions and insolvency, while personally sensitive, is generally information that is publicly ascertainable and commonly provided when satisfying statutory tests that person is fit and proper for a regulatory role. Additionally, a person seeking appointment as a Regulator is doing so voluntary and consequently is choosing to undertake a process which requires their personal information to be considered.

I therefore consider that clauses 10 and 12 are compatible with the right to privacy in section 13 of the Charter.

Right not to be punished more than once for the same offence (section 26)

Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which they have already been finally convicted or acquitted in accordance with law. This right is engaged by clauses 10 and 12 which provide that a person who has been convicted, or found guilty, of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence, cannot be recommended by the Minister for appointment as Regulator. This right is also engaged by clause 14 which provides, among other things, that the Regulator ceases to hold office if the Regulator is convicted, or found guilty, of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence.

However, in my view, the right against double punishment is not limited by the Bill because where eligibility to hold the office of Regulator is refused or removed on the basis of a person’s criminal history, that refusal or removal will have a protective purpose, rather than a punitive one. That is, the aim of the provisions is clearly to safeguard the integrity of the office, rather than to impose secondary punishment for an offence. I also note this type of protective provision is commonly attached to regulatory roles. As the refusal to appoint, or the act of removing, does not constitute punishment in the sense of a criminal sanction, it does not amount to double punishment for the purpose of section 26, and the right is therefore not limited.

Right to a fair hearing (section 24(1))

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The concept of a ‘civil proceeding’ in section 24 is not limited to judicial decision makers, but possibly encompasses the decision-making procedures of many types of tribunals, boards and other administrative decision-makers. The right to a fair hearing is concerned with the procedural fairness of a decision and the right may be limited if a person faces a procedural barrier to bringing their case before a court, or where procedural fairness is not provided.

Clause 13(1)(c) provides that the Regulator ceases to hold office if the regulator is convicted, or found guilty, of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence. Cessation of appointment in these circumstances does not, in my view, engage the fair hearing right in section 24(1) of the Charter. Where a legislative provision mandates that a person automatically ceases to hold an office where certain events have occurred, then no decision-making exercise is engaged in, and the fair hearing right is therefore not ordinarily engaged.

I therefore consider that clause 13 is compatible with the fair hearing right in section 24(1) of the Charter.

Victorian Early Childhood Worker Register

Part 3 of the Bill deals with the Victorian Early Childhood Worker Register (Register). Clause 23 provides that the Regulatory Authority must maintain the Register and record the date on which information about workers is entered into the Register. Clause 24 provides that the Register must include the following information about all workers, which includes personal information:

• full name;

• date of birth;

• gender;

• personal contact details;

• role of the worker at the service;

• the name of any service where the worker has been employed, engaged or appointed;

• dates of employment, engagement or appointment at the service;

• if applicable, WWCC identifying number and expiry date;

• if applicable, teacher registration number issued by the Victorian Institute of Teaching;

• any other prescribed information.

Clause 25 provides that the Regulatory Authority may issue a notice to approved providers requiring the provision of information in clause 24 of the Bill, about workers employed, appointed or engaged by providers in a specified historical reporting period, for the Register. The notice must specify a timeframe for response that is not less than 45 days after the end of the specified historical reporting period. A failure by the approved provider to provide the stipulated information within this timeframe is a criminal offence with penalty for the approved provider. Clause 304 and provides that the Regulator and members of staff employed or engaged by the Regulator Authority are authorised to access the Register for the purposes of performing the functions or exercising the powers of the Regulatory Authority.

Clauses 29 provides that the Regulatory Authority may disclose information on the Register to the Social Services Regulator for the purposes of the Social Services Regulator performing the functions or exercising the powers of the Social Services Regulator. Clause 30 provides that the Regulatory Authority may disclose information on the Register to persons or bodies specified in this provision if the disclosure is reasonably necessary to promote the objectives of National Law or the CS Act, or the disclosure is for the purposes of enabling or assisting the other entity to perform or exercise any of its functions or powers under the National Law or the CS Act, or where the disclosure is for the purposes of research or development of National, State or Territory policy with respect to education and care services or children’s services.

Right to privacy (section 13)

The establishment of the Register – and the holding of the personal information of workers in the Register – engages the right to privacy. The ability of the Regulatory Authority to disclose the personal information held in the Register to the Social Services Regulator and other authorities specified in clause 30 may also engage the right to privacy. However, any impacts on the right to privacy are not unlawful or arbitrary. The personal information to be included in the Register is clearly stipulated in the legislation and primarily limited to basic personal information (e.g. does not include criminal records). Access to the information is limited to the Regulator and staff of the Regulatory Authority for the purposes of performing the functions or exercising the powers of Regulatory Authority. Any disclosure of the information contained in the Register is strictly limited to the persons and bodies, and for the purposes, listed in clauses 29 and 30 of the Bill. Further, these persons and bodies are all public authorities under the Charter and thereby obliged to act compatibly with information privacy rights, and are subject to obligations under the Privacy and Data Protection Act 2014.

Moreover, the Register is established in response to recommendation 4 of the recent urgent review into child safety in early childhood education and care (ECEC) settings, which identified an urgent need to create a national register of ECEC educators and staff. The establishment of the Victorian Register is a nation-leading step towards a national register, to be hosted by the Australian Government, to protect against predatory and unsafe individuals moving between jurisdictions. Accordingly, any impacts on the right to privacy are appropriate and proportionate to the legitimate aim of protecting children across the ECEC sector in Australia. Further, safeguards have been included in the Bill, including clauses 31–33 which make it an offence to access, use or disclose information in the Register without the authority to do so. I therefore consider that the Register established by the Bill is compatible with the privacy right in section 13 of the Charter.

Offence provisions pertaining to the Victorian Early Childhood Worker Register

Freedom of expression (section 15)

Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. This right has been interpreted as encompassing a right to access information in the possession of government bodies, at least where an individual seeks information on a subject engaging the public interest or in which the individual has a legitimate interest. Pursuant to section 15(3), special duties and responsibilities attach to this right, which may be subject to lawful restrictions reasonably necessary to respect the rights and reputations of others, or for the protection of national security, public order, public health or public morality.

Clauses 31 to 33 create offences relating to unauthorised access to the Register, unauthorised use of information on the Register and unauthorised disclosure of information on the Register. While these offence provisions can be construed as prohibiting conduct that is protected by the Charter, namely freedom of expression and freedom to impart information, these prohibitions are necessary to ensure the privacy of the persons whose personal information is included in the Register. Further, the prohibition on accessing, using and/or disclosing information on the Register without authorisation ensures that the information is not used other than for the primary purpose for which it was collected. As such, I consider that any limit on freedom of expression imposed by these offence provisions comes within the internal exception to protect the rights of others.

Provision of information for the Victorian Early Childhood Worker Register

Clause 25 provides that the Regulatory Authority may issue a notice to approved providers requiring the provision of information in clause 24 of the Bill, about workers employed, appointed or engaged by providers, for the Register within a specified timeframe that is not less than 45 days after the end of the historical reporting period specified in the notice. A failure by the approved provider to provide the stipulated information within this timeframe is a criminal offence with penalty for the approved provider.

The purpose for the provision of this information from approved providers to the Regulatory Authority is to enable the Regulator to exercise their new functions and maintain the Registers in accordance with their obligations under Part 3 of the Bill. While the transfer of this information to the Regulatory Authority has the potential of interfering with the right to privacy in section 13 of the Charter, the interference will be neither unlawful nor arbitrary. This is because the information to be provided to the Regulatory Authority is carefully confined to the statutory purpose of enabling the Regulatory Authority to maintain the Registers. Therefore, the proposed disclosure of information does not extend beyond what is reasonably necessary to achieve the legitimate aim of the Bill, such that it is reasonable and proportionate to the Bill’s important objectives, being the protection of children. It is essential that such information be provided to the Register to allow the Regulatory Authority to track and trace persons employed, engaged or appointed by providers in the sector, and help protect against unsafe persons working in ECEC.

Conclusion

I am therefore of the view that the Bill is compatible with the Charter.

The Hon. Ben Carroll

Deputy Premier

Minister for Education

 Ben CARROLL (Niddrie – Minister for Education, Minister for WorkSafe and the TAC) (20:31): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Victorian Early Childhood Regulatory Authority (VECRA) Bill is a critical component of this government’s overhaul of child safety regulation in the state, in line with our commitment to act urgently to accept all 22 recommendations of the Rapid Child Safety Review handed down by Mr Jay Wetherill AO and Ms Pam White PSM in August.

The safety of children in early childhood education and care (ECEC) settings is fundamental to ensuring they can turn up to childcare or any other ECEC service and immerse themselves in play, play-based learning and the full, rich developmental experience most workers and services strive to provide for every child in their care.

ECEC plays a vitally important role in children’s lives across Victoria, providing them with the best start in life and richly educational experiences, and families deserve peace of mind when their children attend these settings.

Children deserve to be safe wherever they learn, play and grow. We recognise it is critical that we work to ensure the safety of all children who attend ECEC.

Summary of the Bill

This Bill meets the commitment in our response to the Rapid Review to introduce legislation establishing an independent regulator for ECEC services and a register of workers in the sector.

By establishing the register, the Bill brings together in a single system the details of all staff working with children in the ECEC sector. This will enable VECRA to quickly track and trace individuals working in the sector if required – a nation-leading reform.

The Bill also makes explicit provision for VECRA to share information on the register with the Social Services Regulator for the purposes of the SSR performing its functions or exercising its powers.

The Bill creates an offence and penalty for approved providers who fail to submit the required information to VECRA. There will also be offences and penalties for unauthorised access to the register, and inappropriately using or disclosing information from the register, to protect the privacy of the ECEC workforce. The maximum penalties for these offences are 60 penalty units for a natural person and 300 penalty units for a body corporate.

The Bill amends the Education and Care Services National Law Act 2010, which is the Victorian Application Act for the Education and Care Services National Law (National Law), to declare VECRA to be the Regulatory Authority for the purposes of the National Law, and amends the definition of Regulatory Authority in the Children’s Services Act 1996 (CS Act) to make VECRA the Regulatory Authority for the purposes of the CS Act.

The regulation of ECEC services, children’s services and Child Safe Standards for the sector will be brought together with visibility of the employment of every worker in the sector, under the responsibility of the newly created office of Early Childhood Regulator.

The Early Childhood Regulator will head VECRA and report directly to the Minister for Children. This will strengthen oversight of and accountability for the safety of children while in ECEC settings.

I commend the Bill to the house.

 Nicole WERNER (Warrandyte) (20:31): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 12 November.